Kanthaswamy vs State

M. Chokalingam, J.—The sole accused in a case of murder, on being found guilty as per the charge and awarded life imprisonment and also

found guilty for the offence u/s 324, I.P.C. and awarded one year rigorous imprisonment alongwith the fine, has brought forth this appeal. He was

tried by the Court of II Additional Sessions Judge, Erode in Sessions Case No. 181/1998.

The short facts necessary for the disposal of this appeal are as follows:

(a) P.W.1, the daughter of P.W.4 was given in marriage to the accused, 13 years prior to the occurrence and were living at Kullanur, Boothapadi.

Due to the strained relationship, they were living separately. She was living with P.W.4, her father, P.W.3, her step-mother, and P.W.2, wife of the

deceased Perumal, who is the cousin brother of P.W.1. There had been often quarrel among the spouse namely, the accused and P.W.1 since the

accused doubted her fidelity. On the date of occurrence i.e., 8.8.1997 at about 2.30 p.m., the accused came to the house of P.W.4 and

questioned about P.W.1. He went near P.W.1 and was about to attack her. At that time, P.W.3 intervened. The accused attacked P.W.3 with

aruval on her left elbow and on her left ear. P.W.3 fell down unconscious. When the deceased questioned about the same, the accused attacked

him also on his legs. P.W.2 and 4 took the deceased Perumal, immediately to the Government Hospital at Erode, where he was examined by

P.W.12. The deceased died at about 8.00 p.m. P.W.3 who sustained injuries at the hands of the accused was also medically examined by

P.W.12, the doctor attached to the Government Hospital at Erode. He also issued wound certificate, Ex.P.21, where the injuries were narrated.

(b) On intimation, the police people attached to Ammapet Police Station arrived and P.W.1 gave a report. P.W.13, the Inspector of Police, on the

strength of the report of P.W.1, registered a case under Ex.P.1 in Crime No.271/1997 for the offences under Sections 302 and 307 I.P.C. The

printed first information report Ex.P.23 was despatched to the Court.

(c) The Investigating Officer, P.W.13 took up investigation, proceeded to the scene of occurrence, made an inspection in the presence of

witnesses and prepared Ex.P13 mahazar and Ex.P.24, rough sketch. The scene of occurrence was caused to be photographed and the

photographs were also marked as M.O.10 along with the negatives M.O.11. He went to the mortuary and conducted inquest on the dead body of

Perumal and prepared the Inquest Report under Ex.P.26 in the presence of witnesses and panchayatdars. He received the blood-stained articles

M.Os.2 to 4 from P.W.3.

(d) Pursuant to the requisition from the Investigating Officer, P.W.12, the doctor attached to Government Hospital, Vellore, conducted autopsy on

the dead body and found the following injuries.

A long incised wound seen on the left popleteal fossa (back of left knee) 18x6 cms, bone depth, obliquely placed, extending from the back to left

fibula and lower-end of wound above 6 cm below the medial condyle of left femur. On exposing the wound, gastropneumonic muscles, both heads

cut off at the level of akin wound. Complete cut-off of the both popleteal artery and vein also popleteal nerve. Joint capsule of the left knee joint

cut off at the back and exposing the joint cavity. Cut-off of the part of the lateral condyle of the left femur, cut-off of the part of the medial condyle

of left femur, cut off of the upper part of the lateral condyle of left tibia.

The doctor issued post-mortem certificate, Ex.P.3 wherein he has given his opinion that the deceased would appear to have died of shock and

haemorrhage due to injuries to the left popleteal vessels.

(e) In the meantime, P.W.3, after she was treated in the Government Hospital, Erode, went to a private clinic of P.W.7 and was taking treatment

from 9.8.1997 to 16.8.1997. The wound certificate for P.W.3 was issued by P.W.7 under Ex.P.11. During investigation, the accused was

arrested on 9.8.1997. He gave a confessional statement which was recorded by the Investigating Officer in the presence of the witnesses.

Following the same, he produced M.O.1 Kuduval, M.O.7 Lungi and M.O.8 Shirt which were recorded under Ex.P.14. Mahazar. On requisition

given by the Investigating Officer, P.W.6 the Judicial Magistrate, Perundurai, recorded the statements of P.Ws.1, 2, 3 and 4 u/s 164 Cr.P.C.

which were marked as Exs.P.5, 6, 7 & 8. On requisition given by the Investigating Officer, the material objects which were recovered from the

place of occurrence, from the dead body of the deceased and the material objects produced by the accused were all subjected to chemical

analysis, pursuant to which, the chemical analyst''s report, Exs.P.17 and the serologist''s reports, Exs.P.18 & 19 were placed before the Court. On

completion of investigation, the final report was filed by the Investigating Officer and the case was committed to the Court of Sessions and

necessary charges were framed.

In order to substantiate the charges levelled against the appellant/accused, the prosecution marched 13 witnesses and marked 26 exhibits and

11 material objects. On completion of the evidence on the side of the prosecution, the appellant/accused was questioned u/s 313 Cr.P.C. as to the

incriminating circumstances found in the evidence of the prosecution witnesses. The accused denied them as false. No defence witnesses were

examined. The trial court heard the arguments advanced by both sides and made a scrutiny of the materials available and ultimately, found the

appellant/accused guilty as per the charges and awarded the punishment referred to above, which is the subject matter of challenge in this appeal.

While advancing the arguments, learned counsel for the appellant made the following submissions:

The lower Court relied on the evidence of P.Ws.1 to 4, which was projected by the prosecution as direct evidence, and of them, P.W.1 turned

hostile. Since P.W.1 turned hostile, the case of the prosecution shakes and in so far as P.W.3 is concerned, she was an injured witness. It is

pertinent to point out that though the lower Court awarded punishment of one year rigorous imprisonment to the accused/appellant u/s 324 I.P.C.

for causing injuries to P.W.3, no corresponding charge was framed for the said offence. As far as P.W.1 is concerned, a charge was framed

against the appellant for the offence u/s 307 I.P.C. but the Lower Court acquitted the accused of the said charge and thus, it would be clear that

the lower Court was in a confused state of mind and passed the said judgment.

Learned counsel would further add that in the instant case, there was undue delay noticed in giving the first information. Apart from that, there

was suppression of first information alleged to have been given to the police in the hospital itself and that it came to be registered by the respondent

police at 10 ''O Clock. Now the information, what is under Ex.P.1 before the Court is not the first information given and thus, the first information

has been suppressed and what is before the Court is the embellished version of the prosecution. He would further submit that even assuming that

the entire facts are proved, it would not fall within the ambit of murder. Even as per the eye-witnesses, the accused attacked the deceased only on

the knee and thus, he has no intention to cause his death and apart from that, the evidence would clearly go to show that the injury was caused not

with an intention of causing murder. If the Court comes to the conclusion that the accused had attacked on the non-vital part, it would come under

the provisions of Sec.326 I.P.C., and it would not certainly fall within the provisions of Section 324 I.P.C. and such aspect has got to be

considered by this Court.

Heard, the learned Additional Public Prosecutor appearing for the State on the above contentions.

No doubt, the prosecution has brought forth sufficient evidence to hold that the deceased Perumal died out of homicidal violence. In order to

substantiate the same, the prosecution not only examined the direct witnesses through P.W.1 to 4 but also has relied on the post-mortem certificate

Ex.P.3 issued by the doctor, P.W.5 wherein he has opined that the death has occurred on account of shock and haemorrhage. In the instant case,

the accused never questioned the said fact either before the trial Court or before this Court and hence, it could be safely recorded that the

deceased died on account of homicidal violence.

In order to substantiate the fact that the accused/appellant attacked the deceased Perumal at the time of occurrence, the prosecution has

examined four witnesses. At this juncture, it has to be pointed out that merely because the first informant P.W.1, has turned hostile, it cannot be

stated that the case of the prosecution has got to be rejected, for the simple reason that there are other direct evidence adduced through P.Ws.2 to

P.W.3 is an injured witness. This injured was also treated by P.W.12, the doctor attached to Government Hospital, Erode, and he has issued a

wound certificate Ex.P.21. Apart from the evidence of P.W.1, when the evidence of P.W.2 to P.W.4 were taken into account, no substantive

reason has been brought forth to doubt their testimony. Thus, in the absence of the same, merely taking note of the fact of the relationship of the

witnesses, their evidence cannot be rejected. Hence, the lower Court was perfectly correct in placing reliance on the evidence of P.Ws.2 to 4. The

evidence adduced by P.W.2 corroborates with the medical evidence and apart from that the material objects recovered were also subjected to

chemical analysis. It is pertinent to note that the lungi worn by the deceased at the time of occurrence and the lungi worn by the accused were

subjected to chemical analysis and they were found tallying with the blood group of the deceased and thus, the scientific evidence was also in

favour of the prosecution. Under such circumstances, the contention put forth by the appellant''s side that the accused was not involved in the crime

has got to be discountenanced.

As regards the contention that there is delay in giving the first information and the original first information had been suppressed, there is no

evidence to show that any information was recorded even prior to Ex.P.1 given to the police officials as put forth by the prosecution and thus, the

contention of the learned counsel on this aspect has got to be rejected.

Coming to the question of the act of the accused, the Court has to necessarily agree with the learned counsel for the appellant. In the instant

case as per the direct evidence adduced, it would be clear that the accused attacked the deceased on the knee and caused injuries thereon i.e., on

the non-vital part. Thus, the intention of the appellant is not a cause the death of the deceased or he would not have expected that the death would

be caused by inflicting such injury. Therefore, the act of the accused cannot be termed as intentional and pre-meditated and the act of the accused

would not fall within the ambit of murder and it can be termed as grievous hurt. Under such circumstances, the court is of the considered opinion

that awarding of three years rigorous imprisonment for the offence u/s 326 I.P.C. would meet the ends of justice.

So far as the judgment of the lower Court is concerned, it has found the accused guilty of the offence u/s 324 I.P.C. for causing injuries on

P.W.3 and awarded punishment of one year rigorous imprisonment. To the surprise of this Court, the lower Court has not even framed a charge

for convicting the accused u/s 324 I.P.C. Since the Court has found that the accused has caused injuries to P.W.3, which has also been proved,

no corresponding charges have been framed. Even without assuming that there is no corresponding charge framed, the lower court found the

accused guilty of offence u/s 324 I.P.C. for inflicting injuries to P.W.3. Therefore, the Court is of the considered opinion that the conviction and

sentence imposed upon the appellant u/s 324 I.P.C. are liable to be set aside.

Accordingly, the conviction and sentence imposed by the lower court for the offence u/s 302 is set aside, and instead, the appellant is

convicted u/s 326 I.P.C. and is directed to undergo three years rigorous imprisonment for the said offence. The conviction and the sentence

passed by the lower court u/s 324 I.P.C. are also set aside.

In the result, the appeal is partly allowed. It is reported that the appellant/accused is on bail. The Sessions Judge shall take steps to commit him

to prison to undergo the remaining period of sentence imposed upon him.